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Employment Update: Importance of Return to Work Policies

23 September 2016

A recent Labour Court decision considered an employer’s refusal to allow an employee to return to work, even though the employee’s doctor deemed him fit to return. Ultimately, the Court found that the employee was constructively dismissed on grounds of disability. We outline the facts of the case and examine how the decision highlights the need for employers to maintain a robust and comprehensive return to work policy.

In Tom Moloney Limited trading as Squire Maguires v Mr Thomas Keogh [2016] Labour Court Determination ADA 1617, the employee had worked as a full-time barman in the employer’s premises for over four years. In 2012, he attempted to take his own life on two occasions. This led to an absence from work for a week to undergo treatment for psychological issues. On completion of this treatment, the employee was asked to produce a letter confirming that he was “100% sane”. His medical advisor refused to provide a letter in these terms but agreed to provide a certificate stating that the employee was fit to return to full-time work. The employer, however, refused to allow the employee to return on this basis. The employee interpreted this as a dismissal.

The Labour Court

The Labour Court considered the claim on appeal from the Equality Tribunal. The Court noted that the evidence of the engagement between the parties was “clouded in claim and counterclaim” but, on balance, the Court favoured the employee’s version of events.

The Court was satisfied that the employer was aware the employee was suffering from a disability. The Court accepted the employer’s concern over the employee’s ability to return to work, given the challenging nature of the working environment. However, it condemned the employer’s failure to take any positive steps to facilitate the employee’s return to work. The Court found that the employer had placed obstacles in the employee’s way and frustrated him in his efforts to resume normal work. The Court concluded that the employee had been discriminatorily dismissed on grounds of disability. It upheld the Equality Officer’s decision and increased the award for discriminatory dismissal from €12,000 to €16,000.

Conclusion

Traditionally, employees face significant hurdles in order to successfully claim constructive dismissal. In general, employees are required to exhaust internal grievance procedures before resigning. Even though these procedures were not engaged in this case, the employer’s demand for a specifically worded medical certificate was deemed unreasonable and ultimately proved detrimental.

In light of this decision, employers should ensure that they have a clear policy in place setting out the procedures that must be complied with before an employee can return to work following sickness absence. For example, the policy should specify that an employee will be required to attend the company doctor to determine their fitness to return to work.